THE QUEEN v. LEE CHIU CHU alias ELLIS LEE

IN THE COURT OF APPEAL

___________

JUDGMENT

___________

Li, V.-P.:

1. This is an appeal from the judge's order refusing costs to the appellant oho appeared in the court below as defendant.

2. The prosecution case in the court below was that the appellant obtained money from the complainant by deception. The allegation was that the appellant falsely represented that she could help the complainant to obtain a visa to the United States of America. The complainant was induced to buy travellers cheques and hand money over to the appellant together with her identity card for the purpose. The appellant subsequently reported to the complainant that the appellant's husband had lost the identity card and the travellers cheques.

3. Having heard the evidence the judge set out all the prosecution evidence against the appellant and held that there was no case to answer. The judge found that he could not believe the complainant's evidence nor the evidence of one supporting witness, namely the abbot who knew both the complainant and the appellant.

4. The strongest point of the prosecution evidence was that the appellant introduced the complainant to the bank manager of the Hong Kong & Shanghai Bank at the time when they went together to enable the complainant to buy travellers cheques. The commission charged by the Hong Kong & Shanghai Bank was a little higher than the commission charged by another bank from which the complainant had bought travellers cheques for the same purpose. The appellant paid the difference for the higher commission.

5. Since the judge came to the conclusion that the appellant had no case to answer, the appellant did not have to give evidence in her defence. Be that as it may, we cannot go behind the judge's ruling as far as that decision is concerned.

6. Defence counsel applied for costs. The judge gave the following reasons for refusing his application:

"I refused Mr. Westbrook's application. I did so because I was of the opinion that the Defendant had brought suspicion on herself. She was with Pull when PW1 purchased $7000 US worth of travellers cheques . from the Hang Seng Bank on 4th July. She was again faith PW1 when PW1 purchased $$6000 US worth of travellers cheques from the Hong. Kong & Shanghai Banking Corporation on 6th July. She had in fact introduced PW1 to PW2 who had heard the Defendant & PW1 discuss the matter of an application for a visa and had heard the Defendant say she could help PW1 get a visa. The Defendant did go to Macao and was there when the travellers cheques were cashed on the 6th and 7th July. Had PW1 and PW6 been more satisfactory witnesses and had PW2 given evidence (which it appears the Crown expected him to do) that the travellers cheques to the value of $13000 US were handed. to the Defendant by PW1 on his presence, it is in my view possible that the Defendant might have been convicted had there been no other evidence."

In short, the judge did not take into consideration the evidence given out by PW2, namely: the appellant paid part of the commission for the purchase of travellers cheques. Instead, he specified the various points of evidence to indicate why he said the appellant brought suspicion upon herself. We do not think any of these points may be regarded as bringing suspicion upon herself. To aggravate the wrong reasons, the judge added that "had PW1 and PW6 been more satisfactory witnesses then he might have convicted the appellant." That obviously is begging the question. It is a wrong approach for exercising his discretion whether he should grant costs or not.

7. The case of NG Yiu-kin v. R.⁽¹⁾ has been brought to our attention. By virtue of section 73A of the Criminal Procedure Ordinance a district court judge has power to grant costs in the case of an acquittal. The decision in that case adopted the English practice that it should be accepted as normal practice that an order should normally be made for the payment of costs of an acquitted defendant out of central funds under section 3 of the 1973 Act unless there are possible reasons for making a different order. One of the reasons is whether the defendant's own conduct has brought suspicion upon himself and has misled the prosecution into thinking that the case against him is stronger than it is, if so, the defendant may be left to pay his own costs.

8. The learned judge in the court below relied on this practice direction but in refusing costs he adopted the wrong reasons. The reasons he gave are not sufficient reason for refusing costs to a successful defendant. The incidence and reasons he gave are all neutral. We are of the opinion that the judge was wrong in refusing costs to the appellant.

9. Accordingly the appeal must be allowed. The order in the court below is reversed. We order that costs in the court below should be awarded. We order that the costs in the court below be taxed by the Registrar as are the costs of this appeal.

(1)    1983 H.K.L.R. 356